person-731423_1280As humans, it is in our nature to procrastinate, especially when contemplating our own mortality. Too often, people forget or delay writing a Will until death is imminent. While someone may certainly execute a Will as their last Will, Testament, and act in this life, such deathbed Wills may be contested due to improper execution or lack of mental capacity. Last week, we talked about the requirements of a properly-executed Will, but this week we will discuss the mental capacity aspect of Wills and why a Will is not something you want to put off until the last minute.

Who can write a Will?

According to the Utah Probate Code, the requirement for writing a Will is anyone who is “18 or more years of age [and] of sound mind.” The age requirement is straightforward. However, the “sound mind” requirement is a little more complicated.

Mental Capacity Requirements

Everybody makes decisions on a daily basis. These decisions range in difficulty from which movie to watch to issuing ownership shares of a company. When a decision is affected by the law in some way, a certain level of mental capacity is required to render that decision legally binding. The mental capacity required varies widely. The graphic below shows the relationship between the mental capacity required to make different actions binding. A larger circle requires a larger understanding. As you can see, making a Will has a lower mental capacity requirement than some other legal actions.

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The purpose of requiring a lower standard of mental capacity for making a Will is to help people effect their wishes. A testator does not need to understand everything about estate planning, taxes, interest, property transactions, or business succession. The testator only needs to ‘know the objects of his bounty,’ understand the nature of the property, and have the ability to instruct how those assets should be distributed.

Does that mean that my Grandmother with Dementia can still write a Will?

Not so fast. Just because there is a lower standard on capacity for Wills does not make it an automatic affair. Capacity can always be challenged by heirs, so there are some guidelines to follow:

 – Use an attorney’s experience and expertise in drafting a Will.
 – If you are over the age of 65, meet with your primary care physician to talk about your health in general before seeing an attorney about a Will.
– For anyone with early-stage dementia, Alzheimer’s disease, or any other condition affecting their mental capacity, a doctor and attorney should be working in concert to ensure the proper drafting of the Will and to make it binding.

 

Content adapted from Chapter 3 of Mr. Melling’s Book: The Utah Uniform Probate Code: A Quick-Reference Guide for Practitioners and Students